prison
Princetown prison on Dartmoor during the Victorian era

This article is a preview from the Spring 2018 edition of New Humanist.

Shirley Debono is a grandmother from Wales. She’s tanned, friendly and upbeat, and until 2006 led a normal life. When her son Shaun Lloyd was 18, he went out drinking with a friend. The teenagers saw someone outside a shop with a mobile phone and, in a move that changed Lloyd’s life irrevocably, they stole the phone. That theft meant Lloyd ended up spending over a decade in prison. Debono has campaigned on his behalf ever since.

How and why a society locks up its citizens has a profound impact, and the UK is coming under increasing criticism for its approach to incarceration. What happened to Lloyd exposes the worst of the British justice system and illustrates how important it is to ask the right questions of our sentencing policy. What led to our current sentencing setup, and what ethical questions should we consider when it comes to taking away a person’s liberty?

England and Wales have the highest rate of imprisonment in Western Europe. The UK has the most people serving life sentences out of all 47 countries in the Council of Europe. If there were a scale of punitive severity, the progressive penal policies of Western Europe would be at one end and the retributive approach of the United States would be at the other. Most experts agree that the UK would be in the middle. And yet it hasn’t always been this way: the 18th, 19th and 20th centuries saw Britain sprout a series of prison reformists that gave us, at least at certain points, a reputation for progressive imprisonment.

Between 1775 and 1790 a philanthropist from Hackney called John Howard made seven journeys across Europe and beyond in search of humane prison systems that England could learn from. His work led to two Parliamentary Acts – one that abolished problematic jailers’ fees, and another that improved healthcare for prisoners.

In the 19th century, Elizabeth Fry fought hard to improve conditions for offenders, especially female ones. And in the early 20th century Alexander Paterson, as Commissioner of Prisons, introduced and championed the idea of rehabilitation as opposed to punishment, saying, “Men are sent to prison as a punishment, not for punishment.”

At the beginning of the 19th century, in England and Wales, we locked up around seven people for every 100,000. These days there are approximately 145 prisoners per 100,000 people. Since 1993, the prison population has roughly doubled. Liora Lazarus, associate professor in law at the University of Oxford, says it was the late 1970s when the pressure on politicians to appear tough on crime began. “Thatcher was very good at introducing the concept of law and order into political debate, and ever since then Labour has been on the back foot.” The only time that Labour was able to win an election, Lazarus says, was when they came out with the mantra “tough on crime, tough on the causes of crime”, under Tony Blair. Since then a succession of laws – introduced by both Labour and Conservative governments – have incrementally pushed up the number of prisoners and the length of time they serve in prison.

This steady rise has had a disproportionate impact on certain groups. People who have grown up in poverty and have low levels of education and qualifications are more likely to end up in prison, as are people from black and minority ethnic backgrounds. As a recent report by the MP David Lammy exposed, non-white people make up 12 per cent of the population in England and Wales, but 25 per cent of the prison population. People of Afro-Caribbean heritage see the biggest discrepancy.

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In 2006, when Debono’s son Lloyd was sentenced, he received a new type of punishment, the Imprisonment for Public Protection (IPP) sentence. This is now held up as an example of how not to imprison people. IPP sentences were brought in with the Criminal Justice Act 2003 and handed out from 2005 until 2012. They rode in on a wave of rhetoric about protecting the public from the most dangerous criminals, but their impact went much further.

An IPP involves an offender receiving a minimum term they must spend in prison, known as a tariff. Unlike other sentences, it doesn’t include a release date. An IPP prisoner can only be released when they prove they are no longer a danger to society. Proving this is very difficult. Prisoners must take part in rehabilitative courses but the courses are difficult to access. (This was particularly true in the early days of the sentence.) The second problem is how they were handed out. The courts had a long list of specific crimes that could result in an IPP. Some are extremely serious – rape and sex with a minor – but it also includes affray (fighting in a public place), robbery and destroying or damaging property.

Many people who have committed the less serious crimes on the list were given a short tariff reflecting the severity of their crime, but, because of the lack of resources to aid rehabilitation, ended up staying in prison for years and sometimes decades longer than their original tariff.

Before he stole the mobile phone, Debono’s son had been caught stealing a bike, so he was given an IPP sentence with a tariff of two years. Lloyd spent months trying to get a place on the appropriate courses. Months turned into years, and soon his two-year tariff was up. He went before the parole board but wasn’t released. The same thing happened the next year. And the next.

Debono is keen to point out that her son deserved to be punished. “I don’t condone what he did and he deserved to go away. But he didn’t deserve this.” She explains that she began to realise her son had been given what she calls “a life sentence through the back-door” when he went up for parole after parole but was never deemed fit for release.

The IPP was so problematic that it was abolished in 2012, but the abolition was not made retrospective, which means, according to the latest data from the Ministry of Justice, there are still 3,353 people serving IPPs. Of those prisoners, 85 per cent have served longer than their tariff. There are 465 IPP prisoners who have received a tariff of less than two years – which means that, like Lloyd, they are likely to have committed a low-level crime – but have now been locked up for five or more years on top of that two-year tariff. Of those people, 48 have spent more than a decade in prison for a low-level crime.

Even when IPP prisoners are released, their sentence doesn’t really end. They live under a “life licence”, which means they are constantly under the threat of being recalled to prison for minor infractions. Released IPP prisoners can apply to have the life licence revoked after ten years, but no one has yet successfully applied.

Debono has become a sort of ambassador for the IPP prisoners, travelling around the country and lobbying MPs. Her work means she’s a magnet for stories from family members of prisoners. There’s Daniel, who was released into a hostel but was once five minutes late back so was recalled to prison. There’s Liam, who was 18 when he went to prison for fighting. Twelve years later he’s still there and is finding it so hard to cope he self-harms. And, of course, there’s her own son. After 11 years in prison for stealing a phone he has finally been released, but has missed a huge part of his life. In a brutal irony, Debono points out: “He doesn’t even know how to use a smartphone. He hasn’t got a clue.”

There will be several hundred IPP prisoners who genuinely are a danger to society. At the opposite end of the spectrum to Lloyd is John Worboys, the “black cab rapist”. Worboys drugged and sexually assaulted women in his taxi for many years. He was given an IPP in 2009, for 19 sexual offences against 12 women, but it is thought he could have made over 100 attacks. Recently the parole board decided to free him, to much outcry, including from his victims. Much of the anger stems from how the police treated his victims, and the fact that he was never tried for scores of his alleged attacks. The parole board cannot, of course, consider allegations prisoners were never tried for. But Worboys’s case does suggest they are overstretched and liable to make poor decisions.

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What to do with the IPP prisoners is now a huge problem for the prison estate, the parole board and the Ministry of Justice. How was such an erroneous sentencing policy ever implemented? Before IPPs came into force, some foresaw their impact. In a prophetic interview with the Guardian in 2005, the late Dr David Thomas, a Cambridge University academic and an influential figure in the development of UK sentencing practice, warned: “The definition of who is a dangerous offender is so broad that all manner of people will fall within it, and we’ll see – or, in theory, should see – some bizarre sentences which judges will be very reluctant to pass but the law says they should pass.”

The author of the policy was the then Home Secretary David Blunkett. This year he said in an interview that, rather than being evidence-based, the policy was partly down to an emotional reaction to high-profile cases. One was the case of Michael Stone, who brutally attacked a mother and her two daughters with a hammer. “It was about, as it always is, individual cases which come to public attention and which you build into your own psyche.”

Blunkett was speaking on a BBC programme hosted by another former Home Secretary, Jacqui Smith. She concluded that, essentially, politicians weren’t paying attention: “First not much discussion inside the Home Office as the IPP idea is born, then, very little scrutiny by MPs and peers, as a centrepiece of the government’s legislative programme winds its way through Parliament.”

Dr Harry Annison, a lecturer at Southampton Law School, has researched the IPP sentence. He told me that because the legislation labels all IPP prisoners as “dangerous offenders”, it is difficult for ministers to resolve. “Any legislative measures would write their own headlines – ‘the government is freeing dangerous offenders.’”

What the IPP shows is that once a sentence has been implemented it is very difficult to change it. The IPP reminds us of how important it is to get it right when we remove people’s freedom, and that we must ask the right questions of our sentencing policy. This becomes even more critical when we consider that prejudices within our justice system, and wider society, are causing black and working class people to be sent to prison at a much higher rate than others.

So, what are the ethical questions we should be asking? One criticism of the IPP was that it locked people up for crimes they could commit in the future, but our existing mandatory and discretionary life sentences also use this principle. Some argue these are currently being handed out too freely and keeping people locked up for too long.

Including IPP prisoners, we currently have around 11,000 people serving indeterminate prison sentences. Someone found guilty of murder automatically receives a mandatory life sentence. This has been the case since the abolition of capital punishment in 1965, but what it means in practice has changed. The minimum tariff – time spent in prison before being considered for parole – has crept up. According to Ministry of Justice data, in 2005 the average minimum tariff was just under 16 years, but by 2014 that had increased by 32 per cent to just under 21 years.

Then we have discretionary life sentences. These can be handed out for offences such as rape or robbery, if the court believes the offender is a danger to the public. The average tariff for non-mandatory life sentences increased by 75 per cent between 2005 and 2014, from just over six years to almost 11 years.

How do we measure the level of danger a person poses? After the court, the danger is measured by the Parole Board, an organisation widely regarded as overstretched and overly risk-averse.

In the book Preventive Justice, Lucia Zedner and Angela Ashworth examine the values and principles that could guide and limit the state’s use of preventive techniques, such as indeterminate prison sentences for the protection of the public. One of their suggestions is that it should be necessary to show that serious harm is more likely than not to occur for a preventive sentence to be acceptable, but “research continues to show that predictions of serious harm are more frequently wrong than right.”

On the other side of the coin to public safety is rehabilitation. Can criminals change their ways, through taking part in courses and education inside prison? And does the potential for change justify locking them up with no release date? Annison says that in the abstract, an indeterminate rehabilitative sentence holds obvious attractions: “The idea that you can fix people, you can make them better, then return them to the community is appealing, especially if you don’t know anything about criminal justice.” In practice prisons are terrible places – often overcrowded, under-staffed and under-resourced – which means little detailed rehabilitative work can occur, he suggests. “The system simply doesn’t work in practice much of the time.”

Why the UK has so many prisoners locked up with no release date is a simple question with a complex answer. The power of the media, politicians’ fears, historical policy mistakes and under-funded public services all play a role. What is clear is that if we don’t ask the right questions of our policies, lives are ruined.